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April 23 2013

Update: Employers Are Limited In Their Ability To Regulate Employees' Speech Via Social Media

By: Kimberly M. Large

Employers must be careful about restricting their employees’ use of social media.  While this area of the law is still developing, the National Labor Relations Board (the “NLRB”) continues to maintain its recent position that social media is the contemporary equivalent of a lunch-room or water-cooler chat among employees.*  As a result, social media dialogue will generally be protected by federal labor laws if the discussion arguably relates to wages, hours of work, benefits or other terms and conditions of employment. 

The NLRB is an independent federal agency that was created to enforce the National Labor Relations Act.  It continues to aggressively police employers’ policies that could be construed as restricting employees’ protected activity on social media.  For instance, in DirectTV U.S., 359 NLRB No. 54 (2013), the NLRB deemed language in the employer’s intranet policy and company handbook to be illegal because employees might reasonably construe the policies as prohibiting discussions about wages, benefits, etc.  The company’s intranet policy stated “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.”  While this policy did not define “company information”, the handbook defined “company information” to include “employee records” as information that must be kept confidential.  (The handbook policy, titled “Confidentiality”, stated that employees should “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and should “[n]ever give out information about customers or DIRECTV employees.”)  The NLRB held that the “explicit prohibition on releasing information concerning ‘the job’ or fellow ‘DIRECTV employees’ as well as ‘employee records’ would reasonably be understood by employees to restrict discussion of their wages and other terms and conditions of employment.”  The NLRB also decided employees reading the intranet policy and handbook policy together would understand the intranet policy to prohibit discussion of wages, discipline and performance ratings.  The NLRB found that both policies of the employer were unlawful. 

Some of the NLRB’s Division of Advice’s recent Memos suggest that the NLRB may be backing off a little from finding so many employer policies to be unlawful, and giving more consideration to the context of a policy’s wording.  Employers must proceed very cautiously, both when drafting company policies and in considering whether to impose discipline based on employees’ use of social media.  An employer should consult with counsel about its employment policies regarding social media as well as any surveillance implications.   

(Note that these decisions were issued by an NLRB that included two recess-appointed members to meet the NLRB’s quorum requirement.  The D.C. Circuit held on January 25, 2013 that those appointments were not proper [Noel Canning v. NLRB, 705 F.3d 490].  The NLRB has declared that it intends to file a petition for certiorari with the United States Supreme Court by April 25, 2013 for review of that decision.  In the meantime, the effect of this NLRB’s decisions on these social media issues is uncertain.) 

* For further history regarding the current NLRB’s stance on this issue, see Policing Social Media May Create Problems for Employers.